Thank
you, Mr. Chairman, Senator Leahy, and Members of the Committee. I
appreciate the opportunity to appear here today to discuss proposed
revisions to the Foreign Intelligence Surveillance Act of 1978.

Foreign
intelligence surveillance is a critical tool in our common effort to
prevent another catastrophic terrorist attack on the United States. The
enemies we face operate in obscurity, through secret cells that
communicate globally while plotting to carry out surprise attacks from
within our own communities. We all recognize the fundamental challenge
the War on Terror presents for a free society: To detect and prevent
the next 9/11, while steadfastly safeguarding the liberties we cherish.
Maintaining the constitutional balance between security and liberty
must be our polestar in any legislative effort to reframe the FISA
statute.

The past 28 years since the enactment of FISA have
seen perhaps the greatest transformation in modes of communication of
any period in history. In 1978, almost all transoceanic communications
into and out of the United States were carried by satellite, and those
communications were intentionally kept largely outside the scope of
FISA's coverage, consistent with FISA's primary focus on domestic
communications surveillance. At that time, Congress did not anticipate
the technological revolution that would bring us global high-speed
fiber-optic networks, the Internet, e-mail, and disposable cell phones.

Innovations in communications technology have fundamentally
transformed how our enemies communicate, and therefore how they plot
and plan their attacks. It is more than a little ironic that al Qaeda
is so expert in exploiting the communications tools of the Internet age
to advance extremist goals of intolerance and tyranny that are more
suited to the 12th century than the 21st. Meanwhile, the United States,
the most advanced Nation on earth, confronts the threat of al Qaeda
with a legal regime designed for the last century and geared more
toward traditional case-by-case investigations.

The
limitations of the traditional FISA process and the acute need to
establish an early warning system to detect and prevent further al
Qaeda attacks in the wake of 9/11 led the President to authorize the
Terrorist Surveillance Program. As described by the President, that
program, which has been the subject of prior hearings before this
Committee, involves the NSA's monitoring of international
communications into and out of the United States where there are
reasonable grounds to believe that at least one party\ to the
communication is a member or agent of al Qaeda or an affiliated
terrorist organization.

This Committee is currently
considering several pieces of legislation addressing FISA and the
Terrorist Surveillance Program. I want to thank the Chairman for his
leadership on these issues and for his hard work in crafting a
comprehensive approach that will help us fight terrorists more
effectively and gather critical foreign intelligence more efficiently.
I also wish to thank Senator DeWine, who sits both here and on the
Intelligence Committee; Senator DeWine has also introduced a bill,
co-sponsored by Senator Graham, which represents a very positive
approach to the issues presented by the Terrorist Surveillance Program.
The Administration urges the Committee to approve both of these bills
promptly, and we look forward to working with the Congress as a whole
as this legislation moves ahead, and with the Intel Committees, where
technical changes can be appropriately discussed to ensure that FISA as
amended will provide the Nation with the tools it needs to confront our
new adversaries.

I intend to focus my remarks today primarily on the Chairman's bill.

Fundamentally,
Chairman Specter's legislation recognizes that in times of national
emergency and armed conflict involving an exigent terrorist threat, the
President may need to act with agility and dispatch to protect the
country by putting in place a program of surveillance targeted at the
terrorists and designed to detect and prevent the next attack. Article
II of the Constitution gives the President authority to act in this way
to defend the Nation. The provisions in Chairman Specter's legislation
providing that FISA does not interfere with the President's
constitutional authority simply reaffirm the same proposition stated by
the FISA Court of Review in its seminal decision in 2002. That court
"[took] for granted that the President does have that [constitutional]
authority," and concluded that "FISA could not encroach on the
President's constitutional power." In re Sealed Case, 310 F.3d 717, 742
(Foreign Intel. Surv. Ct. of Rev. 2002).

At the same time,
however, Chairman Specter's legislation will provide an important new
role for the Judicial Branch in the review of such presidential
programs, in addition to oversight by the Intelligence Committees of
the Congress. His bill would add a new title to FISA under which the
FISA Court, subject to certain requirements, would have jurisdiction to
issue an order approving a program of terrorist surveillance authorized
by the President. This legislation would create for the first time an
innovative procedure whereby the President (acting through the Attorney
General) will be able to bring such a surveillance program promptly to
the FISA Court for a judicial determination that it is constitutional
and reasonable, in compliance with the requirements of the Fourth
Amendment. The FISA Court would also be authorized to review the
particulars of the program and the minimization procedures in place, to
help ensure that the surveillance is focused on the terrorist threat
and that information collected about U.S. persons is properly
minimized. The availability of these procedures and the ability of the
FISA Court to issue an order approving a program of electronic
surveillance will strongly encourage Presidents in the future to bring
such programs under judicial supervision.

As Chairman Specter
has announced, in response to this proposal and the other positive
innovations contained in the Chairman's bill, the President has pledged
to the Chairman that he will submit his Terrorist Surveillance Program
to the FISA Court for approval, if the Chairman's legislation were
enacted in its current form, or with further amendments sought by the
Administration.

Chairman Specter's legislation would also
protect sensitive national security programs from the risk of
disclosure and uneven treatment in the various district courts where
litigation may be brought. Under his bill, the United States (acting
through the Attorney General) could require that litigation matters
putting in issue the legality of alleged classified communications
intelligence activities of the United States be transferred to the FISA
Court of Review, subject to the preservation of all litigation
privileges. The Court of Review would have jurisdiction to make
authoritative rulings as to standing and legality under procedures that
would ensure protection of sensitive national security information and
promote uniformity in the law.

In addition to the innovations
I have described, Chairman Specter's legislation includes several
important reforms to update FISA for the 21st century. These changes
are designed to account for the fundamental changes in technology that
have occurred since FISA's enactment in 1978, and to make FISA more
effective and more useful in addressing the foreign intelligence needs
of the United States in protecting the Nation from the unique threats
of international terrorism.

Changes contained in the
Chairman's bill would correct the most significant anachronisms in
FISA. Most fundamentally, Chairman Specter's legislation would change
the definition of "electronic surveillance" in title I of FISA to
return FISA to its original focus on surveillance of the domestic
communications of persons in the United States. It would generally
exclude surveillance of international communications where the
Government is not targeting a particular person in the U.S. This change
would update FISA to make it technology-neutral and to reinstate FISA's
original carve-out for foreign intelligence activities in light of
changes in international communications technology that have occurred
since 1978.

The bill would also change the definition of
"agent of a foreign power" to include any person other than a U.S.
person who possesses or is expected to transmit or receive foreign
intelligence information while within the United States. Occasionally,
a foreign person who is not an agent of a foreign government or a
suspected terrorist will enter the United States in circumstances where
the Government knows that he possesses potentially valuable foreign
intelligence information, and the Government currently has no means to
conduct surveillance of that person under FISA.

Finally,
Chairman Specter's bill would also significantly streamline the FISA
application process. Among other things, the Chairman's legislation
would limit the amount of detail required for applications and would
specify that an Executive Branch officer specially designated by the
President to conduct electronic surveillance for foreign intelligence
purposes may certify a FISA application. And, very importantly, the
"emergency authorization" provisions would be amended to permit
emergency surveillance for up to seven days, as opposed to the current
three days, and to specify that the Executive Branch officer specially
designated by the President may approve emergency authorizations, with
appropriate notification to the Attorney General. * * *

Again,
Mr. Chairman, thank you for the opportunity to appear today to discuss
this important issue. We look forward to working with Congress on this
critical matter. And, today, we urge the Committee to give speedy approval to the bills introduced by Chairman Specter and Senator DeWine. # # #